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Supreme Court
No. 2007-223-C.A.
(K2/02-232B)
State                                                                                                :
v.                                                                                                   :
Jerry Coleman.                                                                                       :
Present: Suttell, C.J., Goldberg, Flaherty, Robinson, JJ., and Williams, C.J. (ret.).
O P I N I O N
Chief Justice Williams (ret.), for the Court.   The defendant, Jerry Coleman, appeals
from a Superior Court order denying his motion to reduce sentence pursuant to Rule 35 of the
Superior Court Rules of Criminal Procedure.   This case came before the Supreme Court for oral
argument on September 30, 2009, pursuant to an order directing the parties to show cause why
the issues raised in this appeal should not be summarily decided.   After examining the written
and oral submissions of the parties, we conclude that this appeal may be resolved without further
briefing or argument.  For the reasons set forth below, we affirm the order of the Superior Court.
I
Facts and Travel
The facts of this case are more elaborately presented in State v. Coleman, 909 A.2d 929
(R.I.                                                                                                2006).    We discuss only those facts relevant to Mr. Coleman’s present appeal.    At
approximately 9:30 p.m. on July 3, 2001, Mr. Coleman and his confederate, Jeffrey Alston a/k/a
Kam Ausar,1 broke into the Warwick home of Dennis and Suzanne Laven.   While the two were
1 Jeffrey Alston is also known as Kam Ausar.   On November 2, 2005, this Court issued an order
granting Mr. Alston’s motion to amend the record to reflect this name change.   For the sake of
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still inside, Mr. and Mrs. Laven returned home and noticed a suspicious car outside their house.
Noticing that their front door was ajar and a light was on inside the house, Mr. Laven approached
the house, yelling some approximation of “[g]et out of the house, we’re home.”   Just then, he
observed two men run out of his house and into the nearby woods.   Mr. Laven briefly gave
chase, but then returned to the suspicious vehicle parked out front and removed the keys from the
ignition.   Meanwhile, Mrs. Laven phoned 911 from a portable telephone that she had retrieved
from inside the house.   She then joined her husband to wait in the driveway for the two men to
return from the woods, which they did a short time later.
As Mr. Coleman and Mr. Alston emerged from the woods, Mr. Laven yelled to them that
he had their keys and that the police were on their way.   After confirming that the keys were not
in the ignition, the larger of the two men charged Mr. Laven, stating that he had a knife and was
going to stab him.2   As the larger man charged, Mr. Laven threw the keys into the woods and
steeled himself for the altercation.   As the fight between Mr. Laven and the larger man ensued,
the smaller of the two men joined the fight and struck Mr. Laven in the head from behind and
kicked him repeatedly.   Mr. Laven and the two men continued to fight until the smaller man
returned to the car to try to start it.   A short time later, the larger man abruptly ceased fighting
and joined the smaller man at the car.   Just as suddenly, the larger man returned to Mr. Laven,
this time declaring that he had a gun and was going to shoot him.  Another fight between the two
men ensued until the larger man turned his attention to Mrs. Laven and told her he was going to
shoot her.   In response, Mrs. Laven surrendered her own car keys and the larger man returned to
simplicity, however, we will refer to Kam Ausar as Jeffrey Alston. See State v. Coleman, 909
A.2d 929, 931 n.1 (R.I. 2006).
2 The Lavens were unable to identify Mr. Alston and Mr. Coleman, however, the jury in Mr.
Alston’s trial convicted him of felony assault, while, the jury in Mr. Coleman’s trial found him
guilty of the lesser-included offense of simple assault.   See State v. Alston, 900 A.2d 1212, 1217
(R.I. 2006); see also Coleman, 909 A.2d at 932.
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his car believing the keys to be his.   The smaller man then unsuccessfully attempted to start his
car.   Suddenly, the headlights from a neighbor’s car illuminated the street and both men fled
back into the woods.  The police arrived on the scene shortly thereafter.
After an investigation into the incident, the state charged Mr. Coleman and Mr. Alston
each with:                                                                                             (1) conspiracy to break and enter a dwelling in violation of G.L. 1956 § 11-1-6; (2)
breaking and entering a dwelling in violation of G.L. 1956 § 11-8-2; (3) assault with a dangerous
weapon in violation of G.L. 1956 § 11-5-2; (4) assault and battery resulting in serious bodily
injury in violation of § 11-5-2; and (5) driving a motor vehicle without the consent of the owner
in violation of G.L. 1956 § 31-9-1 and G.L. 1956 § 31-27-9.   Mr. Alston and Mr. Coleman were
tried separately. 3
A
The Alston Trial
Mr.  Alston  was  tried  and  convicted  of  felony  conspiracy,  breaking  and  entering  a
dwelling, and felony assault.   He was then sentenced to a total of seventeen years imprisonment,
including consecutive terms of:   (1) ten years on the conspiracy charge (five years to be served at
the Adult Correctional Institutions (ACI) and five years suspended, with probation); (2) fifteen
years on the breaking and entering charge (five years to be served at the ACI and ten years
suspended, with probation); and (3) ten years on the assault charge (seven years to be served and
three years suspended, with probation).   In addition to his seventeen-year sentence, Mr. Alston
had a previously suspended sentence revoked, resulting in an additional seven-year sentence.
Subsequently, Mr. Alston appealed his conviction, which was vacated by this Court on the
grounds that the trial justice erred by admitting Mr. Coleman’s confession into evidence at trial.
State v. Alston, 900 A.2d 1212, 1221 (R.I. 2006).
3 Prior to trial, Mr. Alston successfully moved to sever his case.  Coleman, 909 A.2d at 934 n.4.
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Mr. Alston was retried in April 2008, and, for a second time, was convicted of felony
conspiracy, breaking and entering, and felony assault.   This time, Mr. Alston was sentenced to a
total of forty years imprisonment, consisting of:                                                     (1) ten years for conspiracy to commit breaking
and entering; (2) ten years for breaking and entering; and (3) twenty years for felony assault.  He
was sentenced to serve all terms consecutively.
B
The Coleman Trial
In July  2003, a jury convicted Mr. Coleman of conspiracy to commit breaking and
entering, breaking and entering, simple assault, and driving a motor vehicle without the consent
of the owner.    Mr. Coleman was sentenced to serve a total of twenty years imprisonment,
including:                                                                                            (1) ten years on the conspiracy charge (five years to be served at the ACI and five
years suspended, with probation); (2) fifteen years on the breaking and entering charge (twelve-
and-a-half to be served and two-and-a-half suspended, with probation);  (3) one year on the
simple assault charge; and  (4) five years on the charge of driving a motor vehicle without
consent of the owner  (eighteen months to serve, and three-and-a-half years suspended, with
probation).  Like Mr. Alston, Mr. Coleman also was sentenced to serve consecutive sentences.
Mr.  Coleman  appealed  his  convictions  on  several  grounds,  none  of  which  were
successful.   See Coleman, 909 A.2d at 934.   On December 4, 2006, Mr. Coleman moved to
reduce his sentence pursuant to Rule 35, arguing that:                                                (1) his sentence was disproportionate to
that of his confederate, Mr. Alston; (2) his sentence for breaking and entering exceeded the
recommended sentence as set forth in the Superior Court Sentencing Benchmarks; and (3) that
his sentences should run concurrently rather than consecutively.
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II
Standard of Review
“[A] motion to reduce sentence under Rule 35 ‘is essentially a plea for leniency.’”   State
v. Ferrara, 818 A.2d 642, 644 (R.I. 2003) (quoting State v. Kilburn, 809 A.2d 476, 480 (R.I.
2002)).                                                                                                 “This Court has maintained a ‘strong policy against interfering with a trial justice’s
discretion in sentencing matters,’ and, therefore, we only will interfere with that discretion ‘in
rare instances when the trial justice has imposed a sentence that is without justification and is
grossly disparate from other sentences generally imposed for similar offenses.’”   State v. Rossi,
771 A.2d 906, 908 (R.I. 2001) (mem.) (quoting State v. Mollicone, 746 A.2d 135, 137 (R.I.
2000)).                                                                                                 “A manifestly excessive sentence is defined as one which is ‘disparate from sentence[s]
generally  imposed  for  similar  offenses  when  the  heavy  sentence  imposed  is  without
justification.’”   State v. Ortega, 755 A.2d 841, 841 (R.I. 2000) (mem.) (quoting State v. Ballard,
699 A.2d 14, 16 (R.I. 1997)).                                                                           “It is the defendant’s burden to show that the sentence imposed
violates this standard.”  Id. (quoting State v. Cote, 736 A.2d 93, 94 (R.I. 1999)).
III
Analysis
A
The Breaking and Entering Sentence
Mr. Coleman first argues that his twelve-and-a-half-year sentence for breaking and
entering was grossly disproportionate to the five-year breaking and entering sentence that Mr.
Alston received after his first trial.   Initially, both Mr. Coleman and Mr. Alston received fifteen-
year sentences for their breaking and entering convictions.   Mr. Coleman, however, was ordered
to serve twelve-and-a-half years, with two-and-a-half years suspended, while Mr. Alston was
ordered to serve five years, with ten years suspended.   Mr. Coleman’s argument relies on the
initial seven-and-a-half-year disparity between Mr. Coleman’s time to serve and Mr. Alston’s
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time to serve after his first trial.  That comparison, however, is no longer meaningful because Mr.
Alston’s first conviction was vacated, and his first sentence has become a nullity.   After Mr.
Alston’s first conviction was vacated, and after he was convicted a second time, he received a
total of forty years imprisonment.  Of that forty-year sentence, Mr. Alston was sentenced to serve
ten years imprisonment on the breaking and entering charge.   Thus, the difference between Mr.
Coleman and Mr. Alston’s breaking and entering sentences is a mere two-and-a-half years.
This Court has held that confederates need not receive equal sentences for the same
crime. See State v. Flores, 637 A.2d 366, 366-67 (R.I. 1994) (disparity between confederates’
sentences permissible where sentence mirrored culpability); State v. Holley, 623 A.2d 973, 974
(R.I.                                                                                                  1993)   (five  year  difference  between  sentences  of  two  confederates  not  grossly
disproportionate).    Here,  the  two-and-a-half-year  disparity  between  the  sentences  that  Mr.
Coleman and Mr. Alston received for breaking and entering is not grossly disproportionate.
Further, although Mr. Coleman received two-and-a-half years more on the breaking and entering
charge than Mr. Alston, Mr. Alston received a total of forty years imprisonment, compared with
Mr. Coleman’s twenty years imprisonment.   Mr. Coleman’s argument that his sentence was
grossly disproportionate to Mr. Alston’s is therefore meritless.
Next, Mr. Coleman argues that his fifteen-year breaking and entering sentence was
excessive  because  it  exceeds  the  sentence  as  set  forth  in  the  Superior  Court  Sentencing
Benchmarks.   The crime of unlawful breaking and entering of a dwelling house is punishable
under § 11-8-2(a) by imprisonment for “not less than two (2) years and not more than ten (10)
years for the first conviction, and for the second and subsequent conviction shall be imprisoned
for not less than four (4) years and not more than fifteen (15) years * * *.”   In addition to the
sentence imposed by statute, the Superior Court Sentencing Benchmarks recommend a one-to
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four-year sentence for breaking and entering into an unoccupied dwelling.    Superior Court
Sentencing Benchmark 3.
Although, when sentencing a defendant, “a trial justice may use benchmarks as a guide to
the proportionality of a term, [s]he is bound only by the statutory limits.”   State v. Bettencourt,
766 A.2d 391, 394 (R.I. 2001) (quoting State v. Gordon, 539 A.2d 528, 530 (R.I. 1988)).                 “In
formulating a fair sentence, a trial justice ‘considers various factors including the severity of the
crime, the defendant’s personal, educational, and employment background, the potential for
rehabilitation, social deterrence, and the appropriateness of the punishment.’”   Id. (quoting State
v. Brigham, 666 A.2d 405, 406 (R.I. 1995)). The sentencing benchmarks allow departure “when
substantial and compelling circumstances exist.”   Superior Court Sentencing Benchmarks, Using
the Benchmarks 1.   If a trial justice sentences a defendant outside the recommended range, the
benchmarks instruct the trial justice to “give specific reasons for the departure on the record.”
Id.   Examples of compelling circumstances provided in the sentencing benchmarks include a
defendant’s prior criminal record, lack of remorse, whether the defendant testified, and if he or
she testified and gave patently false testimony, and “other substantial grounds which tend to
mitigate  or  aggravate  the  offender’s  culpability.”    Id.  at                                      1.(q).    Further,  the  sentencing
benchmarks explicitly allow for a sentencing departure based on a defendant’s criminal history.
Superior Court Sentencing Benchmarks, Departure from Benchmarks.
Here, because this was Mr. Coleman’s second breaking and entering conviction, the
maximum sentence he could receive under § 11-8-2 was fifteen years, a term which the trial
justice imposed.  Acknowledging her departure from the benchmarks in sentencing Mr. Coleman
to fifteen years with twelve and a half to serve, the trial justice listed myriad reasons for doing
so:                                                                                                     (1) that the breaking and entering by Mr. Coleman was not comparable to the breaking and
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entering into an unoccupied dwelling because there was no indication that the house was going
to remain vacant, as was demonstrated by the Lavens’ return home in the midst of the break-in;
(2) that the breaking and entering turned into a crime of violence; (3) that Mr. Coleman was a
career criminal and was a poor candidate for rehabilitation; (4) that he refused to take personal
responsibility for his crimes; (5) that he lacked any remorse; and (6) that he lied on the stand at
his trial.   She further stated that she found it in the best interests of the community for Mr.
Coleman to be removed from society for twenty years.  These specific findings, in addition to the
fact that this was Mr. Coleman’s second breaking and entering conviction more than fully justify
the trial justice’s departure from the benchmarks.  Thus, we see no reason to disturb the sentence
imposed.
B
Consecutive Sentences
Finally,  Mr.  Coleman  argues  that  his  sentences  should  have  run  concurrently,  not
consecutively.   Relying on this Court’s holding in Ballard, 699 A.2d at 18, that “where * * * a
criminal defendant commits multiple criminal endeavors concurrently, thereby giving rise to
multiple  convictions,  that  defendant  ought  to  be  committed  to  serve  sentences  for  those
convictions concurrently, absent the presence of extraordinary aggravating circumstances * * *.”
In recent years, however, we have declined to treat our holding in Ballard as a bright-line rule
with respect to consecutive sentences.   See State v. Monteiro, 924 A.2d 784, 794 (R.I. 2007)
(questioning whether Ballard still held precedential value); State v. Vieira, 883 A.2d 1146, 1150
n.3 (R.I. 2005) (reiterating that our holding in Ballard should be read narrowly as applying to the
facts in that case); State v. Morris, 863 A.2d 1284, 1288 (R.I. 2004) (“Ballard did not establish a
bright-line rule on consecutive sentences.”); see also Ferrara, 818 A.2d at 645 (distinguishing
Ballard on its facts in upholding the defendant’s consecutive sentences).   While we are aware
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that “stare decisis serves a profoundly important purpose in our legal system,” we also firmly
believe  that                                                                                            “overruling  precedent  is  justified  if  the  motivating  purpose  is  to  eliminate
inconsistency and anomalous results.”   State v. Gautier, 871 A.2d 347, 358 (R.I. 2005) (quoting
State v. Werner, 615 A.2d 1010, 1014 (R.I. 1992)).   Recognizing that this Court’s holding in
Ballard was an aberration, we now hold that Ballard is of little or no precedential value.
At both Mr. Coleman’s sentencing and his motion to reduce hearing, the trial justice, in
ordering Mr. Coleman to serve consecutive sentences, emphasized that Mr. Coleman’s crime
was not just a run-of-the-mill breaking and entering.  What the trial justice found most disturbing
was that, rather than fleeing once the Lavens returned home, Mr. Coleman chose to stay and
fight Mr. Laven for the keys to his getaway car.   The trial justice also determined that the crime
was “one of violence, * * * a premeditated crime, a cold-hearted crime, a crime for profit, with
no regard, whatsoever, to the rights of Mr. and Mrs. Laven, and without regard to the law.”   The
trial justice further highlighted that this incident had changed the lives of both Mr. and Mrs.
Laven by “interfere[ing] with their sense of comfort and security at home.”
After noting that Mr. Coleman lied on the stand during his trial, that he lacked any
remorse for his actions, and that he refused to take personal responsibility, the trial justice found
that Mr. Coleman was a poor candidate for rehabilitation.   Finally, the trial justice deemed Mr.
Coleman to be a danger to society, given his long history of unlawful behavior and his inability
to “function in society as a law-abiding and productive member of the community.”  Given these
factors,  and  the  trial  justice’s  exhaustive  explanation  of  her  reasoning  in  sentencing  Mr.
Coleman,  we  hold  it  was  not  an  abuse  of  her  discretion  to  order  Mr.  Coleman  to  serve
consecutive sentences.
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IV
Conclusion
For the reasons stated herein, we affirm the Superior Court’s denial of Mr. Coleman’s
motion to reduce his sentence.
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Supreme Court
No. 2007-223-C.A.
(K2/02-232B)
State                                                                   :
v.                                                                      :
Jerry Coleman.                                                          :
NOTICE:    This  opinion  is  subject  to  formal  revision  before
publication in the Rhode Island Reporter.  Readers are requested to
notify the Opinion Analyst, Supreme Court of Rhode Island, 250
Benefit Street, Providence, Rhode Island, 02903 at Tel. 222-3258
of any typographical or other formal errors in order that corrections
may be made before the opinion is published.




RHODE ISLAND SUPREME COURT CLERK’S OFFICE
Clerk’s Office Opinion Cover Sheet
TITLE OF CASE:                                                                           State v. Jerry Coleman.
CASE NO:                                                                                 No. 2007-223-C.A.
(K2/02-232B)
COURT:                                                                                   Supreme Court
DATE OPINION FILED:   December 14, 2009
JUSTICES:  Suttell, C.J., Goldberg, Flaherty, Robinson, JJ., and Williams, C.J. (ret.)
WRITTEN BY:                                                                              Chief Justice Frank J. Williams (ret.)
SOURCE OF APPEAL:      Superior Court
JUDGE FROM LOWER COURT:
Associate Justice Netti C. Vogel
ATTORNEYS ON APPEAL:
For Plaintiff:     Christopher R. Bush
Department of Attorney General
For Defendant:  Marie T. Roebuck
Office of the Public Defender

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